February 6, 2019- State of New Mexico v. Bradford Parker, No. A-1-CA-37010

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“NTH C7 APPEA”> 3 FTHES A E FNEW MEXICO

Court of Appeals of New Mexico
Filed 2/6/2019 9:57 AM

Si ATE OF Nu W MEXICO, 7) >
Plaintiff-Appellee, Cm fat
V. NO. A-1-CA-37010
BRADFORD PARKER,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN OUNTY

John A. Dean, Jr., District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee

Law Offices of Adrianne R. Turner
Adrianne R. Turner
Albuquerque, NM

for Appellant

MEMORANDUM PINION

VANZI, Judge.

{1}

Defendant appealed following his conviction for CSCM. We issued a notice

of proposed summary disposition in which we proposed to uphold the conviction.

Defendant has filed amemorandum in opposition. After due consideration, we remain

unpersuaded by the assertions of error. We therefore affirm.

1 {2} 	The pertinent background information has previously been set forth. We will
2 avoid undue reiteration here and focus instead on the content of the memorandum in
3 opposition.
4 	{3} 	First, 	Defendant 	renews 	his 	argument 	that 	the 	district 	court 	erred 	in
5 disqualifying his attorney, based upon a conflict of interest. [MIO 8-15] In this case,
6 the question of disqualification arose after it came to the State's attention that the firm
7 representing Defendant had previously been retained by the mother of the victim. A
8 hearing was conducted, at which numerous witnesses testified. Thereafter, the district
9 court entered its disqualification order, which clearly sets forth the factual and legal
10 	basis for its decision. [RP 144-49]
11 	{4} 	In his memorandum in opposition Defendant protests that the attorneys did not
12 	undertake to actively represent the mother of the victim. [MIO 3-4, 1O] However, the
13 	evidence before the district court, including the letter issued by the attorney indicating
14 	that she had been engaged to represent the victim's mother, as well as the mother's
15 	stated belief that it was her understanding that the attorneys represented her, [MIO
16 	4-5, 10] supplied ample support for the district court's determination. And although
17 that representation may have concluded, the subject of the original representation of
18 	the victim's mother (i .e., a civil action arising out of Defendant's sexual abuse of the
19 victim) was substantially related to the subject of the subsequent representation of
2

1 Defendant (i.e., the criminal case arising out of Defendant's sexual abuse of the
2 victim), and their interests were undeniably materially adverse. The district court
3 properly 	concluded 	that 	this 	constituted 	a 	prohibited 	conflict, 	requiring
4 disqualification. 	See 	Rule 	16-109(A) 	NMRA 	("A 	lawyer 	who 	has 	formerly
5 represented a client in a matter shall not thereafter represent another person in the
6 same or a substantially related matter in which that person's interests are materially
7 adverse to the interests of the former client unless the former client gives informed
8 consent, 	confirmed 	in 	writing."); 	Rule 	16-116(A)(l) 	NMRA 	(providing 	for
9 mandatory disqualification where the representation will result in violation of the
10 Rules of Professional Conduct).
11 	{5} 	In his memorandum in opposition Defendant argues that the attorney who
12 	undertook the original representation of the victim's mother did not actually obtain
13 	confidential information, or pass that on to the additional attorneys who subsequently
14 joined in the criminal defense team. [MIO 9-1 O] However, this is not the nature of the
15 	inquiry. See Living Cross Ambulance Serv. , Inc. v. NM Pub. Regulation Comm 'n,
16 	2014-NMSC-036, ~ 17,338 P.3d 1258 (explaining that in this context, "[t]he court
17 need not inquire into whether the confidential information was actually revealed or
18 	whether the attorney would be likely to use the information to the disadvantage of the
19 	former client" (internal quotation marks and citation omitted)). Rule 16-109 requires
3

1 disqualification not only when confidential information has actually been disclosed,
2 but also to situations in which there is an appearance that confidential information
3 might have been given to the attorney in the prior representation. Living Cross, 2014-
4 NMSC-036, ,-r 16 ; see also State v. Barnett, 1998-NMCA-105, ,-r 18, 125 N.M. 739,
5 965 P.2d 323 ("[T]he determination of whether there is a substantial relationship
6 turns on the possibility, or appearance thereof, that confidential information might
7 have been given to the attorney in relation to the subsequent matter in which
8 disqualification is sought. The rule does not necessarily involve any inquiry into the
9 imponderables involved in the degree of relationship between the two matters, but
10 	instead involves the realistic appraisal of the possibility that confidences had been
11 	disclosed in the one matter which will be harmful to the client in the other. The effect
12 	of the rule, therefore, is to restrict the inquiry to the possibility of disclosure and not
13 	whether actual confidences were disclosed." (alteration, internal quotation marks, and
14 	citation omitted)). In this case, the interaction between the attorney and the victim's
15 	mother gave rise to such an appearance.
16 	{6} 	Defendant asserts that the disqualification should have been limited to the
17 	attorneys who are members of the firm that represented the victim's mother. [MIO 11-
18 	14] However, in light of the co-counsel relationship, the presumption that confidences
19 	were divulged, and the underlying policy concerns, we conclude that the district court
4

1 acted within its discretion in disqualifying all of the attorneys on the defense team.
2 See generally Rule 16-11 O(A) NMRA (providing that the conflicts of interest of a
3 single attorney are imputed to the entire firm); Living Cross, 2014-NMSC-036, 117
4 (adopting an irrebuttable presumption that a former client revealed facts requiring
5 disqualification); Roy D. Mercer, LLCv. Reynolds, 2013-NMSC-002, 1114, 17,292
6 P .3d 466 (explaining that "[c]lients must be secure in their understanding that
7 attorneys 	will 	maintain 	their 	confidences, 	even 	after 	the 	termination 	of 	an
8 attorney-client relationship[,]" 	and "each 	lawyer 	is 	vicariously 	bound 	by the
9 obligation of loyalty owed by each lawyer with whom the lawyer is associated"
10 	(internal quotation marks and citation omitted)); State v. Gonzales, 2005-NMSC-025,
11 	1 31, 13 8 N .M. 271, 119 P .3 d 151 ("In considering vicarious disqualification, a court
12 	should determine whether a reasonable person standing in the shoes of the defendant
13 	should be satisfied that his or her interests will not be compromised." (internal
14 	quotation 	marks 	and 	citation 	omitted)); 	Barnett, 	1998-NMCA-105, 	1 	19
15 	("[ A]ssurance of confidentiality and efficacy of representation are necessary to
16 	maintain public trust in the integrity of the judicial process."). We therefore reject
17 	Defendant's first assertion of error.
18 	{7} 	Second, Defendant continues to argue that the district court erred in denying
19 his motion for continuance. [MIO 15-18] We remain unpersuaded. As we previously
5

1 observed, [CN 3-4] the record before us supplies no indication as to the length of the
2 requested 	delay, 	and 	we 	cannot 	determine 	whether 	the 	delay 	would 	have
3 accomplished Defendant's objective. Defendant does not dispute that four prior
4 continuances had been granted: three at Defendant's request, and one for Defendant's
5 benefit. Nor does Defendant dispute that the request was made on the day of trial, at
6 great inconvenience to the parties and the district court. See State v. Gonzales, 201 7-
7 NMCA-080, ,-r 36, 406 P.3d 534 ("[W]e presume resetting the trial date on the day
8 trial is supposed to begin is inconvenient for the parties and for the court."). Although
9 Defendant urges that the stated motive was legitimate and that he was not at fault for
10 	failing to identify and pursue the issue prior to trial, [MIO 16, 17] we find no
11 	indication that the continuance would have benefitted the defense in any concrete
12 	way. On balance, we perceive no abuse of discretion. See id. ,-r,-r 34-41 (upholding the
13 	denial of a motion for continuance made on the day of trial, where continuances had
14 	already been granted, and where the defendant failed to establish prejudice).
15 	{8} 	Third, Defendant renews his claim of ineffective assistance of counsel. [MIO
16 	18-20] Defendant bases his claim on counsel's failure to conduct interviews, failure
17 to object to the introduction of a statement, and failure to seek an expert to testify at
18 	trial. [MIO 19-20] However, we find no indication that further interviews would have
19 been helpful to Defendant's case. See, e.g., State v. Ortega, 2014-NMSC-Ol 7, ,-r,-r 54-
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1 60, 327 P.3d 1076 (rejecting a claim of ineffective assistance of counsel based upon
2 failure to interview witnesses for the state, where the record contained nothing to
3 suggest that such interviews would have produced anything of assistance to the
4 defense). Trial counsel' s failure to object to the introduction ofDefendant' s statement
5 also appears to have been reasonable, given that Defendant admitted he was
6 Mirandized, and Defendant's more recent suggestion that his "cognitive difficulties"
7 might have diminished the voluntariness of his statement [MIO 19-20] 	is not
8 adequately developed on the record before 	us . See generally State 	v. 	Telles,
9 	1999-NMCA-013, ,r 25, 126 N.M. 593 , 973 P.2d 845 ("This Court cannot evaluate
10 	matters outside of the record."). We are similarly unpersuaded that the failure to
11 	retain an expert amounted to ineffective assistance of counsel. "[T]his Court has
12 	expressly rejected the contention that the failure to introduce the testimony of an
13 	expert witness constitutes ineffective assistance of counsel per se," Ly tle v. Jordan ,
14 	2001-NMSC-016, ,r 44, 130 N.M. 198 , 22 P.3d 666, and in this case, trial counsel
15 	may have concluded that expert testimony would not have been beneficial to the
16 	defense. See id. ,r 47 (arriving at a similar conclusion). See generally State v. Nguyen,
17 	2008-NMCA-073, ,r 30, 144 N.M. 197, 185 P.3d 368 (" It is for defense counsel to
18 	assess whether a particular expert's testimony will be helpful, and ... we will not
19 	second guess counsel ' s decision.").
7

1 {9} 	Ultimately, although the record is insufficient to establish a prima facie case
2 of ineffective assistance of counsel on direct appeal, we note that Defendant is not
3 precluded from pursuing this claim in a separate habeas proceeding. See State v.
4 Arrendondo, 2012-NMSC-013, ,r,r 42-44, 278 P.3d 517 (noting that although there
5 was not enough evidence to properly address the defendant's ineffective assistance
6 	of counsel claim on direct appeal, he remained at liberty to pursue habeas corpus
7 proceedings, where he could develop the record).
8 	{IO} 	Fourth and finally, Defendant renews his claim of cumulative error. [MIO 20-
9 21] In light of our rejection of Defendant's various individual assertions of error,
10 there is no cumulative error. See State v. Bent, 2013-NMCA-108, ,r 37,328 P.3d 677
11 	("Because there was no individual error, we find no cumulative error.").
12 	{t t} 	Accordingly, 	for the reasons stated in the notice 	of proposed summary
13 	disposition and above, we affirm.
14 	{12}
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IT IS SO ORDERED.
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1 3 2
WE CONCUR:
2. Main
J. MILES HANISEE, Judge
4 5
Kristina Bogardus
KRISTINA BOGARDUS, Judge
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